By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
Milwaukee County could face liability on constitutional claims related to Sheriff David Clarke's participation in a federal detention program the State Supreme Court last week shrouded in secrecy.
A federal judge in Oregon already has ruled that a request from Immigration and Customs Enforcement is not reasonable cause to incarcerate a person. While not binding on Wisconsin, the Oregon decision clearly lays out the danger in accommodating detention that include little or no evidence of criminal activity.
The Wisconsin Supreme Court ruled, 4-2, last week in favor of Clarke's contention that he can keep secret records related to inmates who remain incarcerated beyond their normal release point at the request of Immigration and Customs Enforcement.
The extra-long incarceration is limited to 48 hours, but Saturdays, Sundays, and holidays don't count, according to the Oregon Federal Court decision in Miaria Miranda Olivares v Clackamas County. That means the actual extra incarceration could be much longer than 48 hours in many instances. (See decision at the end of this post.)
Asked if the ruling meant the state now has a secret detention program, attorney Peter Earle responded, "I think so."
"This would not be an alarming case at the level I'm alarmed if these were normal times," he said, referring to recent ICE roundups of immigrants..
Earl represented Voces de la Frontera, an immigrants rights group that sought access to ICE forms called I-247s that ask local law enforcement to honor the extra-long detention for specified inmates ICE believes may be in the country illegally.
A constitutional claim like the one in Oregon is possible, Earle said, if defendants caught up in the program can be identified. There is a concern, he said, that people will just get lost in the system.
Earle said the inmates held under the federal program are accused of state and local offenses, not federal crimes. The federal government also does not compensate the county for the costs it incurs holding the inmates for ICE.
In Oregon, Miranda-Olivares was arrested for violating a domestic violence restraining order and booked into the the Clackamas County Jail on March 14, 2012, according to the decision by U.S. Magistrate Judge Janice M. Stewart.
"The County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention." - U.S. Magistrate Judge Janice M. Stewart
The jail the next morning received the federal request to hold Miranda-Olivares.
Miranda-Olivares was charged with two counts of contempt of court and a judge set bail at $5,000. Under normal circumstances, she could post $500 cash and be freed. In this case, though, there was that ICE detainer.
Jail officials, over the next two weeks, told Miranda-Olivares' sister repeatedly that Miranda-Olivares would not be released even if the bail was posted because of that document.
Miranda-Olivares eventually pleaded guilty to one charge and was sentenced to 48 hours in jail, with credit for time served. She was held for an extra 19 hours, however, because of the ICE detainer.
In her decision, Judge Stewart noted that complying with an ICE detainer request is voluntary, not mandatory.
"Miranda-Olivares was not charged with a federal crime and was not subject to a warrant for arrest or order of removal or deportation by ICE," Stewart wrote. "The County admits that Miranda-Olivares was held past the time she could have posted bail and after her state charges were resolved based exclusively on the ICE detainer."
ICE, however, did not show probably cause to hold Miranda-Olivares, Stewart said.
"It stated only that an investigation 'has been initiated' to determine whether she was subject to removal from the United States," she wrote.
"There is no genuine dispute of material fact that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention," Stewart wrote.
The county, Stewart said, "violated Miranda-Olivares’s Fourth Amendment rights by detaining her without probable cause both after she was eligible for pre-trial release upon posting bail and after her release from state charges."
Almost three-quarters of money raised last year by Supreme Court Justice Annette Ziegler's campaign came through donations of $1,000 or more, campaign records show.
Ziegler raised $373,106 last year and had $288,920 on hand at the end of 2016, according to her January finance report.
Ziegler is unopposed in the April 4 election.
Ziegler received 86 donations of $1,000 or more in 2016. Those large donations totaled $267,800, or almost three-quarters of the amount her campaign raised, record show. Twelve donors kicked in $10,000 or more.
Ziegler accepted $1,000 from the Wisconsin Bankers Association PAC, according to the January report. The Association is one of the corporate lobbying groups that signed a letter to Gov. Scott Walker urging him to grant pay raises to Ziegler and other judges in the state.
The charts below show only individual donations of $1,000 or more. Multiple donations totaling $1,000 or more are not included. The Realtors Political Action Committee, the political arm of the Wisconsin Realtors Association, for instance, made three $500 donations to Ziegler's campaign on June 23, for a total of $1,500. Those donations are not shown. The Realtors Association also signed on to the letter asking Walker to give raises to judges.
Auto dealer Michael Darrow's June 15 $1,000 contribution was a conduit contribution, meaning individual donors bundled their contributions.
Big-money donors to Ziegler's uncontested campaign included Daniel McKeithan, executive officer and director of Tamarack Petroleum Co. ($20,000); billionaire Diane Hendricks, chairman of ABC Supply Co. ($10,000); conservative mega-donor Richard Uihlein, CEO of Uline, Inc. ($10,000); businessman John Burke ($10,000); James Schloemer, chairman and CEO of Continental Properties Inc. ($10,000); and fast food restaurant owner Steve Kilian, president of Kilian Management Services ($10,000).
State Supreme Court Justice Michael Gableman, a financial beneficiary of the gun lobby, participated in Friday's case, Wisconsin Carry Inc. v. City of Madison.
Wisconsin Carry, a pro-gun organization, seeks to overturn a Madison transit commission's rule that prohibits guns on buses. A Dane County Circuit judge and a Court of Appeals panel found that the state's concealed carry pre-emption law applied only to resolutions and ordinances adopted by the common council, not to a rule implemented by an agency.
Gableman is indebted to the gun lobby, He took $1,500 from the Wisconsin Concealed Carry Movement political action committee and $1,000 from the NRA Political Victory Fund before his last election.
The Supreme Court justices decided, on a 4-3 vote in 2009, that accepting lots of money from someone with an interest in the outcome of a case doesn't mean the accepting justice is biased in that case.
Attorney General Brad Schimel, who filed a brief favoring bus gun-toters, accepted $1,000 from the NRA Victory Fund in 2014. Schimel was under no legal obligation to file the brief.
The consent of the governed?
Not always needed, wrote Daniel Kelly, Gov. Walker's newest appointee to the Supreme Court.
God's laws trumped everybody else's.
"There is a law pre-existing governments that does not depend on any man's volitional action or decision," Kelly wrote, channeling John Quincy Adams, in the 1991 inaugural issue of the Regent University Law Review. "This law has a determinate content, separating right from wrong, and defining justice, and most importantly...this law is binding upon man-it does not require his agreement or consent." (Emphasis added.)
Kelly, the founding editor of the the law review, was a little vague about what all was included in the "determinate content," citing only the most obvious crime.
"Both God and nature stand in witness that murder is wrong," he wrote.
But ordinary mortals can make some choices, Kelly argued.
"Neither Scripture nor nature, however, directly addresses whether import tariffs should be imposed, what the personal income tax rate ought to be, or how appeals should be prosecuted in the federal court system. In matters such as these, we are left to our discretion and mutual agreement," he wrote.
Regent University was formerly was known as Christian Broadcasting Network University, was founded by televangelist Pat Robertson, and was considered a mediocrity under both names.
Here is a bit more of Kelly's introductory piece to the first issue of the law review.
The overarching mission of the Regent University Law Review is the same as that of Regent University, that is, to bring glory to God and to His Son, Jesus Christ, through the Holy Spirit...
We believe that God's law has something to say about every area of law. To the inevitable objection that the law of nature and nature's God could not possibly have anticipated such topics as corporate taxation, antitrust suits, or the constitutional incorporation doctrine, I answer: Every legal question must rest on some foundational premise, and that premise must stand the test of measurement against the law of nature and nature's God. Jesus illustrated the importance of foundations with relation to our faith...
Kelly wrote about the unchanging nature of scientific laws and compared it the laws of society. He cited that great thinker, Calvin Coolidge who observed that "[m]en do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness."
In another section of his essay, Kelly wrote,
The law revealed in Scripture, with which the law of nature is in all points consistent, both having the same Author, is our ultimate recourse for truth....We are, and must be, subject to the principles contained in Scripture. Just as we do not choose to submit to the general theory of relativity, so is consent unnecessary with regard to the general principles of Scripture, though when considered carefully, reason will show that it is only logical that we are subject to them.
And he concludes by quoting James 1:22:
Do not merely listen to the word, and so deceive yourselves. Do what it says. Anyone who listens to the word but does not do what it says is like a man who looks at his face in the mirror and, after looking at himself, goes away and immediately forgets what he looks like. But the man who looks intently into the perfect law that gives freedom, and continues to do this, not forgetting what he has heard, but doing it-he will be blessed in what he does.
The discussion among Supreme Court members during a recent Open Rules Conference was about tribal courts and circuit courts. Justice Rebecca G. Bradley noted that justices previously had expressed concern about the ability of poor people to access courts.
And then Justice Michael J. Gableman said, "...We expect, of course, that the unrepresented litigant will be knowledgeable of the law. It’s a fiction, but it’s a fiction we’ve decided as a society to subscribe to because otherwise our system couldn’t function.”
Justice, apparently, is a nice outcome, but totally optional.
The Wisconsin Supreme Court, in a case that is sure to diminish whatever respect the public still holds for it, decided yesterday that a law is just fine if it looks fair on the page, but is not fair as it actually works in the real world.
Justice Michael J. Gableman's opinion in the 5-2 decision (Justices Shirley S. Abrahamson and Ann Walsh Bradley dissented) is comical, but not funny. At issue was a law prohibiting local governments from enforcing residency rules for public employees. The question was whether Milwaukee -- which faces more harm through the loss of residency requirements than other communities do -- could keep its residency rule through "home rule," which allows local governments to make its own rules on matters of local concern.
No, said Justice Michael Gableman, writing for the majority. As long as a law looks like it treats local governments across the state equally -- even though it does not -- the state can adopt legislation superseding home rule. The mere appearance of fairness is enough.
Reality need not count, according to Gableman, "as long as the statute, on its face, uniformly affects cities or villages throughout the State."
Gableman's decision defies logic. Imagine the Legislature adopted a law that all two-legged creatures must have their wings cut off. That looks fair on its face, but in real life, people would have a lot less to worry about than birds.
Or imagine the Legislature adopted a law that all Wisconsin residents be stripped of their common sense. That looks fair on its face, and might do great harm to a great many Wisconsin residents, but Justice Gableman would have nothing to worry about at all.
The state's open records law survived a
"This review raises a single question that was well stated by the court of appeals," Justice Shirley Abrahamson wrote for the majority. "Is a district attorney an "employee" as that term is used in...(state law)...such that the district attorney may maintain an action for notice and pre-release judicial review of records?"
On such technical issues do laws thrive or get gutted. In this case, for now, the law lives on.
Abrahamson noted in her decision that the open records law is not always easy to read or decipher,
"Nevertheless, by analyzing the public records law step by step, we can resolve the present case...," she wrote. "After analyzing the public records law and the parties' arguments, we conclude, as did the court of appeals, that a district attorney holds a state public office and is not an "employee" within the meaning of (the statute)."
The case stems from a State Department of Justice investigation into allegations about Vilas County District Attorney Albert Moustakis. The DOJ found that the allegations were unsubstantiated.
The Lakeland Times, a regional newspaper, filed a request with DOJ for records related to the investigation. and other documents about complaints against Moustakis and correspondence between Moustakis and DOJ.
DOJ, as a courtesy, notified Moustakis that it was going to release the records to the Lakeland Times. Moustakis went to court to block the release. He lost, but appealed. He lost in the State Court of Appeals, too.
A win for Moustakis would have allowed independently elected officials to delay the release of records about themselves. As applied to justices on the Supreme Court, which has yet to even rule on whether the open records law applies to them, a Moustakis victory might well grind to a halt the release of any records -- who would conduct a judicial review if Supreme Court justice's challenged a decision to release records?
During oral arguments before the court, some justices were rather openly hostile to the way DOJ handled the records request and treated Moustakis.
Abrahamson was joined in her decision by Justices Ann Walsh Bradley, Rebecca G. Bradley, and David T. Prosser.
Chief Judge Patience Roggensack concurred in part, but wrote that she would have reinstated Moustakis' claim because she believed he was entitled to statutory notice and, if he sought it, judicial review before the records were released. Roggensack was joined in her opinion by Justice Michael J. Gableman and Annette K. Ziegler.
The case is not over. Moustakis is pursuing two other claims related to the records release. The Supreme Court did not consider those; they are pending in circuit court.
Five Supreme Court justices who received significant political and financial support from Wisconsin Manufacturers & Commerce should have done the right thing and recused themselves from Friday's decision upholding Wisconsin Department of Public Instruction independence from Gov. Scott Walker.
Instead, the WMC 5 -- Rebecca G. Bradley, Michael J. Gableman, David T. Prosser, Patience D. Roggensack, and Annette K. Ziegler -- participated in the decision.
THE WMC 5
And the credibility of the State Supreme Court dropped just a bit more, settling somewhere well below ground level.
Gableman wrote the majority decision, going against his gray masters at WMC, and Prosser concurred. Bradley, Roggensack and Ziegler dissented, supporting the business lobby.
None of them should have heard the case. Getting that much money and support from participants in this case was a conflict for the WMC 5 is a conflict before it ever came to a decision. It's far too easy to believe that Bradley, Roggesack, and Ziegler delivered in exchange for payment; and it is very hard to not to speculate, given how beholden Gableman and Prosser both are to WMC, why they crossed their benficiary -- was it really the merits of the case? It's impossible not to wonder what is going on in that big, dark shadow that WMC casts.
WMC, along with the Metropolitan Milwaukee Association of Commerce and School Choice of Wisconsin, submitted a brief in the case supporting the pro-Walker forces. They were represented by the conservative Wisconsin Institute for Law and Liberty.
The court in 2010 changed its ethics rules so that justices do not have to recuse themselves based on endorsements or campaign contributions they get from parties involved in a case.
WMC is a big player in Supreme Court races -- big enough to prompt Gableman and Bradley to leave in the middle of oral argument make an appearance at a WMC political event.
It's not clear how much Bradley, elected to a full 10-year term in April, benefited from WMC's deep pockets, though the group was vocal in its support of her. The Wisconsin Democracy Campaign suggested that WMC may have funneled funds through a new group, the Wisconsin Alliance for Reform, which is not required to reveal its funding sources.
Other spending is clearer. WMC spent $2.25 million in support of Gableman in his 2008 race; spent $2.5 million on behalf of Ziegler in 2007; kicked in another $2 million or so to support Prosser; and $1 million to assist Roggensack.
Appeals Court Judge Mark Gundrum, considered a favorite for a State Supreme Court appointment, as a legislator mocked an agreement designed to end inhumane conditions and inmate abuse at the supermax prison in Boscobel.
From the Jan. 5, 2002 Milwaukee Journal Sentinel:
The prison's name should be changed to "something like the `Jon Litscher Kittens and Rainbows Suites,' " if the settlement is approved, said Republican Rep. Mark Gundrum of New Berlin. Litscher is the secretary of the Department of Corrections, which reached the tentative settlement this week with attorneys for inmates who had sued the state over conditions at the ultra-secure prison in western Wisconsin.
"Everyone loves kittens and rainbows, so with that name we should all feel warm and fuzzy toward the worst rapists and murderers in Wisconsin," Gundrum said, adding that the prison could even become a nice site for "our next family vacation."
The settlement's "coddling" provisions called for the appointment of a monitor for two years, and banned the confinement of seriously mentally ill prisoners at the prison. It provided inmates with more time out of their cells, regulated cell temperatures and reduced night-time lighting in the cells. It also called for improved dental and medical care and a significant reduction in the use of restraints and electronic control devices.
The class action lawsuit, filed in federal court, alleged that excessive use of force at the Supermax was a common occurrence and that staff shocked inmates with weapons that often left burn marks on the skin. It also alleged that mentally ill inmates were not given adequate health care. The suit also alleged that inmates' solitary confinement virtually 24 hours a day violated their constitutional rights.
Another person who thought locking mentally inmates in their cells 24 hours a day was being too soft? Gov. Scott Walker, then a state legislator. Walker said the settlement would "coddle hard-core criminals who simply refuse to behave themselves," according to the JS.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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